E. Muhammed Farooque vs State of Kerala

K. Ramakrishnan, J.—This is an application filed by the petitioner challenging the order passed by the Judicial First Class Magistrate in Crl.M.P. No. 1446/14 u/s 482 of Code of Criminal Procedure.

It is alleged in the petition that petitioner was arrayed as accused in Crime No. 234/2011 of Pazhayangadi Police Station alleging commission of the offence u/s 420 of Indian Penal Code and Section 12(i)(b) of the Passport Act alleging that he had forged the passport, used the same as genuine document for the purpose of his travel. The passport was seized and produced before court. Later, he was granted bail. Thereafter, he filed Crl.M.P. No. 4079/11 before the lower court for return of the passport. But, that was dismissed by the court below. Thereafter, he filed Crl.M.C. No. 2676/2011 before this court for the same purpose and this court, by Annexure I order, directed the magistrate to release the passport on condition of furnishing a cash security of Rs. 1,00,000/- and also on execution of the bond for Rs. 1,00,000/- with one solvent surety to the satisfaction of the magistrate and shall file an undertaking that he will appear before the trial court as and when required by the magistrate. Accordingly, on deposit of this amount and execution of the bond, the passport has been released to the petitioner. When he attempted to go abroad, the second respondent seized the passport on the ground that it is a forged one and it was sent to Regional Passport Officer, Thiruvananthapuram for verification and for further action. Thereafter, petitioner filed Crl.M.P. No. 1446/2014 for release the amount as the passport has been seized by the Immigration Authority of International Airport, Nedumbassery and that petition was dismissed by the learned magistrate by Annexure V Order which is being challenged by the petitioner before this court by filing this petition.

Since the passport is with the Regional Passport Officer, Thiruvananthapuram, he was impleaded as additional 3rd respondent as per order in Crl.M.A. No. 5755/2014 and respondents 2 and 3 were represented by Assistant Solicitor General of India.

The Counsel for the petitioner submitted, since the passport was seized by the Immigration Department, he was not able to return the passport and he had not committed any violation of the condition. So, the lower court was not justified in dismissing the application. The Assistant Solicitor General of India submitted that they have not seized the passport on the ground that a crime has been registered against him, but they have got doubt regarding the genuineness of the passport and for the purpose of verifying the same, it was sent to Regional Passport Officer, Thiruvananthapuram after seizing the same.

It is an admitted fact that a crime was registered against the petitioner by Pazhayangadi Police, when they found that the passport obtained by the petitioner is not a genuine passport and a fake passport has been used as genuine passport, they registered Crime No. 234/11 alleging offences u/s 420 of Indian Penal Code and Section 12(i)(b) of the Passport Act and he was arrested and released on bail with conditions inter alia that he shall not leave India without permission from the lower court. Thereafter, he filed an application for return of the passport and permission to go abroad as Crl.M.P. No. 4079/2011 and that petition was dismissed by the learned magistrate. Thereafter, he filed Crl.M.C. No. 2676/11 before this court challenging that order and this court by Annexure I order, allowed the application and directed the magistrate to release the passport on condition of furnishing cash security of Rs. 1,00,000/- and also executing a bond for Rs. 1,00,000/- with one solvent surety to the satisfaction of the learned magistrate. On the basis of that passport, he went abroad and came back and thereafter, using the same passport, he wanted to go to Malaysia and at that time, the Immigration Officer of Cochin International Airport, Nedumbassery found that it is a fake document and he wanted to verify the genuineness of the same. So, he seized the passport and sent it to the additional third respondent for further action in this regard. Thereafter, petitioner filed Crl.M.P. No. 1446/2014 for releasing the amount deposited by him stating that since the passport has been seized by the Immigration Department, he is not able to surrender the passport and he had not violated the condition. But, the learned magistrate dismissed the application.

Since there was a direction to surrender the passport within a particular time and that passport was not surrendered by him and without surrender, he is not entitled to get the amount back. So, at this stage, it cannot be said that the order passed by the court below is not sustainable. However, considering the fact that the passport is required for the purpose of trial of the case and also find out whether it is a forged document or not, it has to be sent for examination by the Forensic Department, keeping the passport with the 3rd respondent will not serve any purpose. Since the passport has already been in the custody of the court and it has been returned to the petitioner only on temporary basis basis and that document is required for the trial of the case, this court feels that a direction has to be given to the 3rd respondent to produce the document before the Judicial First Class Magistrate Court, Ayyannar in Crime No. 234/2011 of Pazhayangadi Police Station as it is required for the ultimate trial of the case. So, the petition is disposed of as follows:

The 3rd respondent is directed to produce the passport within one week from the date of receipt of this order seized from the possession of the petitioner with No. H3448690 dated 12.03.2009 issued from Thiruvananthapuram Passport Office which was seized by the Assistant Director/PRO, Bureau of Immigration, Cochin International Airport, Nedumbassery as per Annexure A III letter.

If the passport Officer produces the passport before the court as directed by this court and if the petitioner applies for return of the money, then, the learned magistrate is directed to consider that application and pass appropriate orders in accordance with law.

With the above direction and observation, the petition is disposed of.

Office is directed to hand over a copy of the order to the Counsel for the petitioner and Assistant Solicitor General of India so as to enable them to produce before the court as well as before the third respondent respectively for necessary further action in this regard.

Office is directed to communicate this order to the court below immediately.